Citation Nr: 9809015
Decision Date: 03/25/98 Archive Date: 04/14/98
DOCKET NO. 96-49 390 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to an increased (compensable) rating for
irritable bowel disease.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
W. R. Harryman, Counsel
INTRODUCTION
The veteran had active service from July 1972 to July 1996.
This case came before the Board of Veterans’ Appeals (Board)
on appeal from a decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Columbia, South
Carolina, in September 1996 which granted service connection
for irritable bowel syndrome and assigned a noncompensable
evaluation.
To the extent that the comments by the veteran’s
representative in his October 1996 memorandum may raise the
issue of entitlement to service connection for liver disease
or may constitute a notice of disagreement with the rating
assigned for the veteran’s service-connected malaria, the RO
has not furnished the veteran a statement of the case
concerning those issues, and so those issues are not properly
before the Board at this time. Those issues are referred to
the RO for appropriate consideration.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends generally that his service-connected
irritable bowel disease is more disabling than is reflected
in the current noncompensable evaluation.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the veteran’s claim for a compensable
evaluation for irritable bowel disease.
FINDING OF FACT
The veteran’s irritable bowel disease is manifested by
occasional, mild flare-ups of lower abdominal crampy pain and
bleeding.
CONCLUSION OF LAW
Irritable bowel disease is noncompensably disabling.
38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1997); 38 C.F.R.
§§ 3.321, 4.1, 4.2, 4.7, 4.10, Diagnostic Code 7319 (1997).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual background
The service medical records reflect complaints by the veteran
of crampy left lower abdominal pain and intermittent episodes
of bright red blood per rectum beginning in 1994.
Colonoscopy in January 1995 confirmed the presence of
diverticular disease. The report of a Medical Board in June
1995 indicates that the veteran had severe abdominal cramping
when he did not adhere strictly to his prescribed diet. He
also noted that he had occasional blood in his stool,
especially after any heavy physical activity. The examiner
reported that the veteran’s symptoms were consistent with his
diverticulosis and diverticulitis history. It was noted that
the condition had not required surgery, but that the veteran
had been instructed to drastically alter his diet and
exercise regimen. The report of a flexible sigmoidoscopy in
January 1996, as well as the report of a colonic biopsy at
that time, indicates that the examination was consistent with
irritable bowel syndrome, with his symptoms sometimes being
brought on by stress.
On a VA general medical examination in August 1996, the
examiner noted that examination of the abdomen was remarkable
only for mild hepatomegaly. The listed diagnoses included a
history of diverticulitis and a history of irritable bowel
syndrome. The report of a gastrointestinal specialist’s
examination indicates that the veteran was taking medication
for flare-ups of his symptoms, the last of which was mild and
occurred less than one month previously. The flare-ups were
manifested primarily by left lower quadrant dull colicky
pain. The veteran stated that he tried to eat a high fiber
diet and to maintain his regularity. He reported that he
also took antispasmodic agents. In addition, the examiner
noted that the veteran had a history of malaria vivax, with
occasional recurrence of fever and chills and whole body
myalgia. On examination, the abdomen was soft and nontender.
There was hepatomegaly, with the liver being palpated 4cm
below the right costal margin; the liver was moderately
tender with minimal palpation. Pertinent laboratory tests
were noted to be normal. The examiner’s diagnoses included
diverticulosis/diverticulitis diagnosed by colonoscopy,
history of irritable bowel syndrome, history of malaria, and
hepatomegaly, questionably secondary to malaria.
Analysis
At the outset, the Board finds that the veteran has met his
burden of submitting evidence sufficient to justify a belief
by a fair and impartial individual that his claims are well
grounded; that is, the claims are not implausible. See
Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Additionally,
there is no indication that there are additional, pertinent
records which have not been obtained. Accordingly, there is
no further duty to assist the veteran in developing the
claims, as mandated by 38 U.S.C.A. § 5107(a).
In general, disability evaluations are assigned by applying a
schedule of ratings which represent, as far as can
practicably be determined, the average impairment of earning
capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Such
evaluations involve consideration of the level of impairment
of the veteran’s ability to engage in ordinary activities, to
include employment. 38 C.F.R. § 4.10. Where there is a
question as to which of two evaluations should be applied,
the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria required for
that rating; otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (1997).
Although regulations require that, in evaluating a given
disability, that disability be viewed in relation to its
whole recorded history, 38 C.F.R. §§ 4.1, 4.2, the present
level of disability is of primary concern. Francisco v.
Brown, 7 Vet.App. 55 (1994). In evaluating the veteran’s
claim, all regulations which are potentially applicable
through assertions and issues raised in the record have been
considered, as required by Schafrath v. Derwinski, 1 Vet.App.
589 (1991).
Severe irritable colon syndrome, manifested by diarrhea, or
alternating diarrhea and constipation, with more or less
constant abdominal distress, warrants a 30 percent
evaluation. For moderate disability, shown by frequent
episodes of bowel disturbance with abdominal distress, a
10 percent rating is appropriate. When the disability is
mild, with disturbances of bowel function and occasional
episodes of abdominal distress, a noncompensable evaluation
is for application. Code 7319.
Diverticulitis is to be rated as irritable colon syndrome.
Code 7327.
The service medical records indicate that the veteran was
evaluated for occasional episodes of lower abdominal
cramping, with blood in his stool, when he did not adhere
strictly to his prescribed diet or when he participated in
heavy physical activity. Further, the August 1996 VA
gastrointestinal specialist indicated that the veteran’s
flare-ups were primarily manifested by dull, colicky pain and
that his last flare-up, less than one month earlier, had been
mild.
There is no evidence that the episodes due to the veteran’s
diverticulitis or irritable bowel syndrome occur more
frequently or that his symptoms are more than mildly
disabling. In the absence of such evidence, a compensable
evaluation for his service-connected irritable bowel disease
is not warranted.
In determining whether a claimed benefit is warranted, VA
must determine whether the evidence supports the claim or is
in relative equipoise, with the veteran prevailing in either
event, or whether the preponderance of the evidence is
against the claim, in which case the claim is denied.
38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49
(1990). In this case, the Board finds that the preponderance
of the evidence is against the veteran’s claim.
ORDER
An increased (compensable) rating for irritable bowel disease
is denied.
STEVEN L. COHN
Member, Board of Veterans’ Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans’ Appeals.
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